Memo: Law & Governance: France's burqa ban

Hertie School of Governance Class U5 Law and Governance Convenor Professor Dr. Nico Krisch Student Steven Lauwers Date 11.11.2010 MEMO 2: DOES FRANCE’S LAW TO BAN THE ISLAMIC HIJAB, OR BURQA, IN PUBLIC SPACE VIOLATE THE EUROPEAN CONVENTION ON HUMAN RIGHTS (‘ECHR’)? (word count: 915) Introduction: Article 9, §1 of the ECHR guarantees the “freedom of thought, conscience and religion; (…) and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.” This freedom is however limited in §2, as it is “subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.” i The memo will explain why France’s law violates Article 9 of the ECHR. Interference: Does France’s law interfere with Article 9 of the ECHR? - Yes. France’s new law states that “(i)n a public space, it is prohibited to wear clothing that covers the face”. ii This law thus applies to the Burqa (or Hijab): a garment worn by women in some Islamic traditions to cover their bodies and face in public spaces. While some might argue the Burqa, or Hijab, is “not a religious symbol”, depending on how one interprets the Koran, it is undeniably associated with Islam religion. iii Legitimacy: Is the measure prescribed by law? - Yes. If we refer to the case Şahin v Turkey, law can be defined as “regulatory measures taken by professional regulatory bodies” and “the provision in force” iv. The Lower House of Parliament approved the legislation in September this year and the (preliminary) law was already published in Le Journal Officiel on March 17, 2004. The European Court for Human Rights (‘ECtHR’) may even consider that extensive coverage of the law in the international press as a source of basic due process notification. v Suitability: Does the measure have a legitimate aim? - Yes. §2 of Article 9 of the ECHR explains under what circumstances the states may interfere with religious freedom. France argues the ban is necessary in their democratic society to safeguard the principle of secularism (“laicité”), which protects government affairs from religious involvement -‐ and the other way around. Also, in order to uphold public safety in society, a person in a public space has to be identifiable at all times. Finally, as the Burqa is associated with the suppression of women, the ban will enhance gender equality in society.

Necessity: Is the measure proportionate to the aim to be achieved? - No. Article 9 of the ECHR protects the individual right of freedom of religion; it is thus important that the interference of the French government with Article 9 of the ECHR is well-‐ balanced with an individual’s need and/or right of freedom of religion and/or the manifestation of his/her religion. The following analysis will show that the measure is disproportionate to the aim to be achieved. A first important step is to define what margin of appreciation the ECtHR would grant France to interfere with Article 9 of the ECHR. While France has valid concerns for the ban (ref. ‘Suitability’), “many legal provisions already serve to ban or in certain cases deter people from wearing the full veil (…).” vi France has a wide range of individual prescriptions or prohibitions, making its legislation, compared with that of similar democracies, one of the most restrictive with respect to these practices. vii France identifies the principle of “laicité” as one of the pillars of their society and argues the ban is necessary to safeguard this secularism. The principle of secularism however only applies to public institutions to assure neutrality from representatives of public authorities in the exercise of their duties. It can also only be binding on society or individuals by virtue of the specific demands on certain public services, as for example the ban in (public) schools. viii The need to identify individuals’ faces is the core of the public security argument, but a ban in all public areas is disproportionate to the aim pursued, especially in light of the far-‐reaching implications it has for individuals to express their religious beliefs. ix In the case of Ahmet Arslan and others v. Turkey the ECtHR ruled that the limitations imposed on the followers of a religious minority, who were sanctioned for wearing their religious attire in the streets, were not proportionate to the legitimate aims (public safety and public order) pursued by the Turkish authorities. x Existing provisions in France, based on public security and anti-‐fraud consideration, already require people to identify themselves at particular times and thus to uncover their faces. xi Also, insofar, no particular public security problems have been associated with the Burqa, or Hijab, as such. If limited to situations where accurate identification is of crucial importance (e.g. court hearings, airport safety checks, etc.), a ban would be proportionate to the measures to be achieved. xii Whereas the claim of gender equality may be justified in certain cases, the complete ban of the Burqa may actually aggravate the situation. xiii It could further restrict the women's freedom by tying them to their private homes. xiv In Şahin v Turkey, the ECtHR stated that banning headscarves would protect the freedoms of those who do not wish to wear a headscarf. xv The ECtHR will however need to consider the possibility that women might legitimately feel the need to wear the headscarf as part of their personal duty to their faith and not due to coercion from outside. Thus, as a consequence of the ban, women might be derived from the possibility to exercise their personal freedom.

i European Convention on Human Rights. Available at: http://www.hri.org/docs/ECHR50.html [Visited: November 6, 2010]. ii Projet de loi. Available at: http://www.senat.fr/petite-‐loi-‐ameli/2009-‐2010/700.html [Visited: November 6, 2010]. iii ECLJ. Legal Analysis Regarding the "Legitimacy of French Proposal to Ban the Burqa in Public Sphere. Available at: http://www.eclj.org/Releases/Read.aspx?GUID=9bf429be-‐368e-‐463b-‐831e-‐5f0328b0ff00&s=eur [Visited: November 8, 2010]. iv Leyla Şahin v. Turkey. 2004. European Court of Human Rights. Para 77. v Boustead K. French headscarf law before ECHR. Available at: http://www.law.fsu.edu/journals/transnational/backissues/issue16_2.html [Visited: November 9, 2010]. vi Conseil d'État. Étude relative aux possibilités juridiques d’interdiction du port du voile intégral. Available at: http://www.conseil-‐etat.fr/cde/node.php?articleid=2000 [Visited: November 6, 2010]. vii Ibidem viii Ibidem ix L. Peroni. Would a Niqab and Burqa ban pass the Strasbourg test. Strasbourg Observers. Available at: http://strasbourgobservers.com/2010/05/04/burqa-‐and-‐niqab-‐ban/#more-‐166 [Visited: November 6, 2010]. x Ahmet Arslan and others v. Turkey. 2010. ECtHR. xi Conseil d'État. Idem. xii E.M. Krockow. Open Think Tank Article "The Burqa Ban -‐ Motiviations, Justifications and Likely Consequences". Atlantic Community. Available at: http://www.atlantic-‐community.org/index/articles/view/The_Burqa_Ban_-‐ _Motiviations,_Justifications_and_Likely_Consequences [Visited: November 7, 2010]. xiii T. Hoopes. The Leyla Şahin v. Turkey Case Before the European Court of Human Rights. Chinese Journal of International Law. Available at: http://chinesejil.oxfordjournals.org/content/5/3/719.full [Visited: November 10, 2010]. xiv Ibidem xv Leyla Sahin v. Turkey. 2004. European Court of Human Rights. Para 111.

Memo: Law & Governance: France's burqa ban

by Steven Lauwers on Nov 12, 2010

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Memo: Law & Governance: France’s burqa ban Document Transcript